John Yoo: Whitaker's appointment as acting Attorney General is unconstitutional

This makes two big-name right-wing lawyers who think Whitaker’s elevation is defective under the Appointments Clause. The other is George Conway, husband to the president’s senior advisor.


Lotta fun around the dinner table at Chez Conway tonight.

Actually, I take it back. There are probably no fewer than three big-name right-wing lawyers who deem this appointment unconstitutional. The other, as you already know if you’ve read this post, is Clarence Thomas.

Axios spoke to multiple legal experts and former Justice Department officials who say they can’t remember a similar case where someone not confirmed by the Senate has been named as acting attorney general. They have different interpretations of the laws, but they agree that the naming of Whitaker is in uncharted legal territory and leaves room for challenges to the legality — and constitutionality — of Trump’s actions…

Even John Yoo, a law professor at the University of California-Berkeley who helped the George W. Bush administration draft its expansive claims to executive power, says the Whitaker appointment may be out of line.

“The Constitution says that principal officers must go through appointment with the advice and consent of the Senate. In Morrison v. Olson, the Supreme Court made clear that the Attorney General is a principal officer. Therefore, Whittaker cannot serve as acting Attorney General despite the Vacancies Act (which does provide for him to be acting AG) — the statute is unconstitutional when applied in this way.”

When asked for comment, the DOJ pointed Axios to the Vacancies Reform Act. Here’s the text, which isn’t long. If I’m reading it correctly, this is the section Trump is claiming authorizes Whitaker’s appointment. If an officer dies, resigns, or can’t perform his duties, then…


“(2) notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or

“(3) notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if

“(A) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and

“(B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS-15 of the General Schedule.

In other words, if you’re a big cheese in the same agency where the vacancy has opened up (Whitaker was Sessions’s chief of staff, remember) then you’re eligible to fill that vacancy temporarily. Note the distinction between sections (2) and (3). Per section (2), POTUS can fill the vacancy if he wants with an employee of any agency so long as that person has been confirmed by the Senate. But per section (3), if POTUS is choosing a temporarily replacement from within the same agency he doesn’t need to worry about that Senate “advise and consent” stuff. That’s why he chose Whitaker instead of a lawyer in some other department.


The counterargument made by Conway, Yoo, and Thomas is simple: The president always has to worry about that “advise and consent” stuff. It doesn’t matter what the Vacancies Reform Act or any other statute says. The Appointments Clause in Article II of the Constitution says that “principal officers” must be confirmed by the Senate, period. (“Inferior officers,” who work under principals, can be appointed without confirmation.) For good reason.

The deputy Attorney General, in this case Rod Rosenstein, is subject to Senate confirmation precisely because there’s a chance in any administration that he might have to assume the role of acting Attorney General for awhile in a pinch. “Advise and consent” ensures that the people’s representatives have found him fit to do so.

One lawyer who spoke to Axios argued that appointing Whitaker as AG now *technically* doesn’t violate the Appointments Clause because Whitaker “doesn’t occupy an official office.” He’s merely the acting AG, not the AG. Which strikes me as goofy, since Whitaker enjoys the full powers of the office — including oversight of Russiagate — so long as he’s “acting,” which could be as long as seven months under the law. Under the “he’s not an officer-officer” theory, he could lawfully fire Mueller, jail Jim Acosta, prosecute people for not watching “Hannity,” and do anything and everything else that might tickle the president’s fancy without any consent from the Senate. No bueno. A rule like that would be an invitation to future presidents to squeeze resignations out of their own AGs and appoint a crony from the same agency to fill the vacancy to wreak legal-political havoc, with the Senate unable to do a thing about it absent a push to impeach in the House.


Trump stands a real chance of losing in court on this, and not on a 5-4 “f*** John Roberts!” ruling either. As noted, the most vocal proponent for strict compliance with the Appointments Clause on the Court is Clarence Thomas, not the more Kennedy-esque members of the conservative majority. The Court might not even reach the constitutional argument, in fact. In addition to the Vacancies Reform Act, there’s another statute specific to the DOJ that says the deputy AG — Rosenstein — takes over if there’s a vacancy in the top job. To the extent that the two statutes conflict, with Trump wanting Whitaker in under the VRA and a separate law indicating that Rosenstein should take the job, the Court might resolve the discrepancy in favor of the latter just because it’s more specific. Congress had a particular plan in mind for the DOJ so that’s the plan that should be followed. Plus, finding that the DOJ succession statute takes precedence over the VRA would allow the Court to elevate an officer who’s already been confirmed by the Senate, thus solving the Appointments Clause issues, without having to hash out the particulars of the Appointments Clause itself.

But Trump has a trump card. What if he dials up McConnell and just asks him to confirm Whitaker? He’ll have 54 seats in January, it appears. Collins and Murkowski can walk away and take Ben Sasse with them and there’s still enough to get Whitaker confirmed. Never mind that Trump took a shine to him specifically because he was critical of the Mueller probe or that a confirmation hearing would get messy when Democrats dredged up the lowlights of Whitaker’s career. The GOP is a Trumpier party after Tuesday with a redder Senate. How would Schumer get to 51 votes against confirmation?


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John Sexton 8:40 PM on September 21, 2023